Judicial Review of Commercial Regulation

Jaime Arancibia

Abstract

English courts have traditionally held a policy of judicial restraint towards regulatory decisions in the commercial context. It is the purpose of this book to contribute to the debate on this issue by providing a critical view of the courts' deferential attitude and advocating a more intensive form of judicial review which is more satisfactory in terms of individual justice. This task is undertaken in three principal stages. First, the deferential approach of the courts is articulated. It is explained that this is particularly based on the regulator's expertise and institutional autonomy, and ... More

English courts have traditionally held a policy of judicial restraint towards regulatory decisions in the commercial context. It is the purpose of this book to contribute to the debate on this issue by providing a critical view of the courts' deferential attitude and advocating a more intensive form of judicial review which is more satisfactory in terms of individual justice. This task is undertaken in three principal stages. First, the deferential approach of the courts is articulated. It is explained that this is particularly based on the regulator's expertise and institutional autonomy, and the demands of administrative efficiency, which prevent the courts from interfering with the development of regulatory policies. Secondly, it is argued that this policy seems to be inconsistent with relevant values of English public law which protect individuals from capricious and arbitrary executive action. In particular, it affects the right of the applicant to obtain an independent assessment of the validity of the impugned decision by a court which acts as ultimate arbiter of law. Finally, it is contended that close supervision over decisions which alter or determine the operation of markets is necessary to reach a level of judicial control that is consistent with the requirements of fairness and reasonableness in this area and with proper respect for the rights of the parties involved. This alternative approach is particularly founded on the principle of proportionality, which entails a greater judicial attenuation of administrative autonomy in order to ensure that actions do not go beyond what it is strictly necessary to achieve the desired outcome.

End Matter

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